Wednesday, July 29, 2009

From the news:At this juncture, Justice Lodha asked Mr. Bhushan: “Has the girl shown any inclination to stay with the father? Why should you disturb? Why should you do something which may harm the child’s interest?”

1. The point which should also be asked is if the child has shown any apathy or aversion to idea of staying with father. In absense of that, it is violation of children's rights to deprive them company and affection of one parent, mostly fathers.

2. Isn't it highly presumptuous that disturbing of status quo in this matter will harm the child's interest. Also given that cases drag for so long in India, is the father to be solely blamed for 'disturbing' a certain status quo?

From the news:The petitioner, lamenting that police resorted to instantaneous arrests in case of dowry-related complaints, said that the force committed procedural violations in bypassing the mandatory provisions of the Act. Once a dowry complaint is received, police must communicate it to the dowry prohibition officers. As per Rule 5 of the Tamil Nadu Dowry Prohibition Rules 2004, the dowry prohibition officers themselves can receive, register and investigate complaints.

While so, the practice of police officials receiving complaints and straightaway seeking to arrest the in-laws has been continuing in the state, the petitioner said.

When the matter was taken up, the court was informed that the government had completed appointment of dowry prohibition officers in all the districts in Tamil Nadu.

Recording the statement, the judges said the officers must conduct surprise checks and discreet inquiries before taking appropriate action. Noting that the officers must ensure full compliance of the provisions of the Act.

This device is resorted to when postponement of the commencement of an Act is necessitated by reason of appointments to be made under the Act, or rules to be framed thereunder and other preliminary arrangements to be carried out for the proper and effective functioning of the Act, or by reason of any change being made by the Act in status or rights the effect of which it is desirable to delay, or by reason of new conditions being imposed on a sectionof the public which makes it desirable, that they should have time to adjust themselves to the new law.

The point to see is that the government has delayed by 6 months already the executive notification of the CrPC amendment act. Is it because of any of above reasons? Is there no reason at all? Isn't it otherwise a waste of precious tax money on legislators spending time to pass a law and then not notify it for execution?

Monday, July 20, 2009

The much debated CrPC Amendment Bill 2008, which contained radical reforms in Section 41.1 of the Criminal Procedure Code in the area of powers of arrest by police after the third report of the National Police Commission raised serious concerns on unnecessary arrests by police and told that 60% of arrests by police are unnecessary and are accounting for 43.2% of jail expenditure.

The amended section says,

1. The police cannot arrest anyone before sending him a NOTICE OF APPEARANCE and in case the accused fails to comply with the notice, the police have to record reasons of arrest in court diary. 2. Also the accused have to be supplied with an FIR copy, a lawyer of his choice and a proper medical checkup.

In the year 2007, 68 lakh persons were arrested out of which 40 lakh were unnecessary as per the National Police Commission report.

"Equal parenting means that 50 per cent of the time a child would be with one parent and 50 per cent with the other... That’s so that the two parents can come together for the good of the child...But the basic line is a 50-50 proposition, and this is to help the child grow up with the help of both parents."

The Canadian Equal Parenting Council, a coalition of 40 organizations that promote equally shared parenting, supports the bill.

Wednesday, July 15, 2009

Foreign law firms? Law firms? What are these creatures? Common people may not care for two seconds why foreign law firms should or should not be allowed to operate in India. Common man wants to stay as far away from lawyers and courts even in his dreams! So public may not have any opinion for or against it.

But the issue may have important ramifications for legal system in India.

First things first, there is no shame in using 'foreign' in India. Many Indians are comfortable with following foreign made or foreign owned goods:1. Coke & Pepsi are both marquee US companies and present in India.2. Snacks and food products by Unilever, P&G and other are consumed in India.3. Many clothing brands are named after 'phoren' sounding names like Allen Solly, Van Heusen, Peter England etc. The interesting thing is that some of these brands are actually owned by Indian companies. So clearly people prefer to buy a brand called 'Peter England' than say 'Subbu Swami'.4. Foreign owned manufacturing and Industrial companies are operating in India. e.g. GE5. Foreign owned companies in Telecom space e.g. Vodafone are also present in India.6. Foreign owned banks like Citibank, HSBC, and service companies like IBM, Accenture are operating in India.7. Foreign insurance companies have joint ventures with Indian companies.

So why do lawyers as a fraternity oppose entry of foreign law firms. They give 2 broad arguments:1. Indian firms should also get reciprocal entry into foreign jurisdictions like UK etc.2. Entry of foreign firms will make legal service expensive for common man and poor people.

The first point is valid but it can be take care of by lobbying at appropriate business forums and with government. If free trade and services are happening in other instances it can be done for legal services too.

The second argument that legal service will become out of reach of common man is totally fallacious. Competition in a market economy is known to reduce prices. Which of the following things have become more expensive and/or less accessible in last 10 years?1. Mobile phones and services2. Medical Insurance3. Financial services (for middle classes and above only)4. Automobiles - cars (think nano), motorcycles etc5. Consumer durables - TV, fridge, washing machines6. None of the above

The right answer is 6. "None of the above". More competition and entry of foreign/joint ventures have improved both cost and quality for common people in India.

The reality of the issue is as follows:1. Foreign law firms will want access to corporate and global legal services like taxation, merger and acquisition, international trade laws etc. These services are high-end and only few law firms in India provide such services. It does not take away legal jobs except give competition at the top end. Foreign firms are not coming to India to serve the common man, at least not directly.2. Also let us not forget many Indian KPO firms are providing legal services to foreign firms. That is providing lucrative employment to many legal professionals in India and can be used as valid argument by foreign law firms to claim entry into India.3. But most importantly, the Indian legal community *does not* provide services to the common man or poor person. The common man is dead afraid to go to a lawyer. Can you really picture a poor man taking out his mobile phone (poor people have mobiles now) and saying "let me speak to my lawyer first"!

The reason is simple. In Indian legal /judicial system, there is so much delay that no sane person goes to courts except in complete desperation and helplessness. The lawyers bred in this system also feed on this helplessness. Because once a person gets trapped he cannot get out so easily. He lives on eternal hope.

A few months back the same lawyers had opposed an amendment in criminal procedure which will make it more difficult for police to arrest a person. Hello lawyers? Do you have any argument to back your claim. Do more arrests lead to more justice in India? The jails are anyway filled with undertrials of many years. Do they get justice because you are there to help them after they get arrested? Do you help their cases to be concluded quickly?

Recently, a few lawyers including a lady lawyer assaulted a judge in a Delhi court when the judge passed an unfavourable order against their client! Also there are many instances in past when lawyers have resorted to vandalism and strikes on flimsy issues.

Obviously lawyers think they are above the law of land. Common people depend on them to get access to courts, but lawyers do not seem to be accountable to anyone including judiciary. Many incompetent lawyers feed on miseries of poor people who get arrested by police and do not have knowledge and access to speedy justice. There may be competent and incompetent people in any profession but the legal system should not encourage incompetence.

So we should support entry of foreign law firms in India. This will achieve the following:1. Competent Indian lawyers will work in these firms or in legal service firms giving outsourced service to foreign clients. It will encourage good students to take up law as profession.2. Middle level competent lawyers will have enough opportunity to get legal work once judicial and police reforms are in place. Because when justice is quick and effective, more people will go to courts for reasonable remedies. False and frivolous cases will get thrown out quickly, so the needy people will get speedy access to justice.3. The incompetent lawyers will have to fend for themselves somehow. They will not be able to exploit poor people due to an unresponsive police and judicial system.

Monday, July 13, 2009

The sexual harassment bill is being discussed in Law ministry with inputs from Women and Child Development (WCD) Ministry and several organisations and NGOs.

An important clause in the proposed legislation is Clause 12 which is to be applied if a woman makes false allegation of sexual harassment.

Given that many sexual harassment cases are wrongly filed after a tiff with male Manager or disagreement over performance etc, this is a welcome clause. It will prevent misuse and allow use of valuable time and resources to help genuine victims.

Let us support inclusion of Clause 12 into the proposed sexual harassment bill. Please write your comments in whatever online forums you can to include measures against misuse of the law.

Clause 12 of proposed Sexual Harassment Bill:

12. (1) Where the Committee or the Local Committee, asthe case may be, arrives at a conclusion that theallegation against the respondent is false or malicious orthe aggrieved woman or any other person making thecomplaint has produced any forged or misleadingdocument, it may recommend to the employer or theDistrict Officer to take action against the woman or theperson who has made the complaint in accordance withthe provisions of the service rules applicable to her or himor where no such service rules have been made, in suchmanner as may be prescribed.

(2) Where the Committee or the Local Committee, as thecase may be, arrives at a conclusion that during theenquiry any witness has given false evidence orproduced any forged or misleading document, it mayrecommend to the employer of the witness or the DistrictOfficer to take action in accordance with the provisions ofthe service rules applicable to the said witness or whereno such service rules have been made, in such manneras may be prescribed.

Saturday, July 11, 2009

That the Indian justice system is very slow is well known. There are very bad side-effects of this not only on the litigants /victims but society in general as well. For one, the slow justice system breeds incompetent lawyers. The reason for this is simple. People go to justice system in distress and without choice. In general, Indian people have in their mind a general contempt of courts (pun intended) in the sense that they do not hold courts to be place of justice but place of torture and to be avoided as much as possible. In such a system, the lawyers know the people approaching them are trapped because a normal person avoids courts as much as possible.

Now there are two ways for lawyer to make money, or earn a living in other words. He can do a good service for client and get him quick justice. That sounds good in a well-functioning justice system. However in our system where most people are into justice system because they feel trapped and helpless, the lawyers can also make money by taking advantage of their being trapped and helpless. By creating fear, by needless delaying hearings on flimsy grounds, and sometimes by colluding with the opposite party etc.

All these will not happen in a fast and efficient justice system. But in a slow system like ours, this is imminent. An average lawyer can delay hearings so he can frustrate a good lawyer who wants to win the case on his and case's merits. So people are trapped and lawyers also are trapped. A good lawyer is trapped because his full potential is not realized in such system. A bad lawyer is doing much better than he could have done in an efficient justice system.

Even chief justice of India betrays this feeling of being trapped in this system! Which is why he recently expressed opinion agsinst the law which would make it mandatory for judges to declare assets. His argument was that it will lead to frivolous cases. Now the right way would be for legislature to create laws which punish frivolous cases or throw them out quickly, and then also judicial system has to be made effective to deal with such frivolous cases. So we need to get out of this collective trap rather than trying to find a comfortable corner in a dysfunctional system!

This is the state of officers supposed to keep corruption under check. They do not have any powers of prosecution and have to take permission from state govt to prosecute the corrupt official. The permission takes it own sweet time. And now they have to face seemingly retaliatory criminal cases.

1. A man or his relatives cannot be charged with causing cruelty to his wife unless his or his relatives' conduct towards the woman is such that can "cause the woman to commit suicide", the Supreme Court has held.

2. The bench said there was no prima facie case to attract a case of cruelty.

Note that the FIR was filed in 2002 in above case. The decision to quash charge-sheet has happened now, in 2009. What kind of legal system do we have that will keep open a case of cruelty under Sec 498A for 7 years when in supreme court's opinion there was no prima-facie case of cruelty? Do police and lower courts need help of supreme court to decide what is prima-facie a case of cruelty or not?

Thursday, July 9, 2009

Here is latest support by a previous nun in support of legalizing gay sex:

"If lesbians could seek partners legally, they would not have to take refuge in a convent. They would not have to languish in the sacred atmosphere of a convent," Jesme writes in an article in a Malayalam weekly. In her autobiography, Amen, Jesme tells her own experience with a lesbian nun, who forcibly slept with her inside her convent room. The Christian institutions built on celibacy are full of homosexual and heterosexual tendencies, the book says."

Wednesday, July 8, 2009

The result has been that when a marriage breaks up the woman is often able to get her husband and many of his family members arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce. In the case of non-resident Indians the process has often proved calamitous for the husband. The spouses have an argument. She runs off to India, often with the children and as many of the assets as she can grab. She immediately starts a Section 498A case in India and then sues for divorce and custody in India. The husband cannot step foot in India because he will be arrested. Meanwhile his relatives in India are clamoring for him to settle up with his wife because they have been in jail or are fearful that that will happen. The Supreme Court of India has described such conduct as “legal terrorism.”

Tuesday, July 7, 2009

Salient points from above:1. A bench comprising Justices Mukundakam Sharma and B S Chauhan, dropping the charges of cruelty and harassment against a husband, noted, ‘Petty quarrels cannot be termed as cruelty to attract the provisions of Section 498A, IPC.2. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty. Cruelty, for the purpose of Section 498A, IPC, is to be established in the context of Section 498A as it may be different from other statutory provisions.’ The 15-page judgment added, ‘It is to be determined/inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out whether it is likely to drive the woman to commit suicide etc.3. It is to be established that the woman has been subjected to cruelty continuously/persistently or at least in close proximity of the time of lodging of the complaint.’ Justice Chauhan spoke for the bench ....4. Thus in our opinion, all the three courts below erred in not considering the case in the correct perspective. The findings so recorded by the courts below may be relevant for granting relief in a matrimonial dispute like divorce etc but could not bring home the charge under Section 498A, IPC.’

Monday, July 6, 2009

I have been working on a project to make a useful guide from my own knowledge and from work of many others who have been fighting against gender biased laws in India. I set out to make this into a document using google docs so multiple authors can edit it through any web browser. So far most or rather all of the editing is done by me but I would welcome others to contribute.

The guide is work in progress but it is coming up fast and is already 30 pages or so. So I have made a permanent link on the right sidebar where the latest guide can be viewed in html format. The link is given here again: Survival Guide to India's gender biased laws

I have started this blog as a sufferer of India's legal /justice system. But we do not give up so easily. So we hope to make things better and that a day sooner than later will come when everyone will get liberty, opportunity, equality before law, and justice without delays. Hence the name of this blog - NyayaBharat.